Potvin v. Dow Motors (Ottawa) Ltd., 2015 HRTO 513

HUMAN RIGHTS TRIBUNAL OF ONTARIO

B E T W E E N:

Samantha Potvin

Applicant

-and-

Dow Motors (Ottawa) Ltd.

Respondent

INTERIM DECISION

Adjudicator: Alison Renton

Date: April 22, 2015

Citation: 2015 HRTO 513

Indexed as: Potvin v. Dow Motors (Ottawa) Ltd.

WRITTEN SUBMISSIONS

Samantha Potvin, Applicant

Blair Spencer, Representative

Dow Motors (Ottawa) Ltd., Respondent

Andrew Bearss, Representative

1This Application alleges discrimination with respect to employment because of pregnancy contrary to the Human Rights Code, R.S.O. 1990, c. H.19, as amended (the “Code”).

2The respondent has filed a Response denying the allegations against it. It requests that the Application be deferred pending the conclusion of a complaint the applicant filed with the Ministry of Labour under the Employment Standards Act, 2000, S.O. 2000, c. 41, as amended (“the ESA complaint”). It provided an excerpt of the ESA complaint along with its Response.

3In sending the Response to the applicant, the Tribunal directed the applicant to file submissions addressing the respondent’s request to defer because of the ESA complaint.

4The applicant filed a Reply, submissions objecting to the respondent’s request to defer her Application, and a copy of the ESA complaint. The applicant submits that the ESA complaint is for wrongful dismissal as well as missing statutory holiday pay, whereas the Application is about harassment and discrimination during her pregnancy. She would like the Tribunal to continue with her Application without any delays.

DECISION

5Pursuant to Rule 14.1 of the Tribunal’s Rules of Procedure (“Rules”), the Tribunal may defer consideration of an application, on such terms as it may determine, on its own initiative, or at the request of any party. Deferral of an application ensures that proceedings dealing with the same issues do not run concurrently, thereby raising the possibility of inconsistent decisions on facts or law.

6The Tribunal will consider, in light of the particular circumstances of each case, whether deferral is the most fair, just and expeditious way of proceeding with the Application. The Tribunal will generally defer an application where the parties are engaged in other legal proceedings raising similar facts and issues, particularly where the other decision-maker has the authority to make determinations with respect to facts and order remedies that parallel the Application. See Baghdasserians v. 674469 Ontario, 2008 HRTO 404.

7I have reviewed the ESA complaint and note that it is essentially the same as the Application. It appears that there is a significant overlap between the Application and the ESA complaint with respect to the facts alleged and the issues raised. The ESA complaint was filed before the Application was filed.

8Tribunal decisions have deferred applications where there were on-going Ministry of Labour proceedings when the facts and issue raised in the ESA claims overlapped with subject matter of the applications: see for example, Matechuk v. OLG at Thousand Islands, 2009 HRTO 324 and Golon v. Addison Chevrolet Buick GMC, 2010 HRTO 448.

9In light of the above, I find it appropriate to defer this Application.

10Accordingly, the Tribunal orders the deferral of the Application pending the conclusion of the Employment Standards proceeding before the Ministry of Labour and any related reviews or appeals.

11Pursuant to Rules 14.3 and 14.4 of the Tribunal’s Rules, where a party wishes to proceed with an Application which has been deferred, the party must file a Request for an Order During Proceedings (Form 10) within 60 days after the conclusion of the other proceeding. The Tribunal’s Rules and Forms can be found on its website.

12I am not seized with this matter.